The Texas Sunset Commission has already begun its review of the Texas psychology board (TSBEP), in anticipation of the 2019 legislative session. Attached is my letter to the Sunset Commission today with my comments on the issues:

I understand that Sunset Staff has asked for comments that focus on the issues and recommendations identified during the previous review process. I appreciate the opportunity to submit the following.

I write as both a psychologist with long experience in psychological research and university teaching and as an attorney with both First Amendment and anti-trust experience.

While the Commission has admirably sought input from a wide variety of stakeholders, these have mainly been service-providers, both inside and outside what is commonly called “organized psychology.” I view my comments as providing both scientific input and reflecting the ordinary citizen as “stakeholder.”

I also write from the perspective of the plaintiff who brought the law suit Serafine v. Branaman. That case resulted in the Fifth Circuit decision generally referred to in the 2016 Staff Report in Issues 4 and 5. The Report correctly states that the decision “held the definition of psychological services in Texas’ statute unconstitutionally infringes on free speech.”

Summary

In the next legislative session, the definition of “psychological services” should be amended, because the new definition in HB 3808 remains unconstitutional.

The legislature should be encouraged to consider certification as a replacement for licensure, in order to eliminate the constitutional problem.

The “Carolina Dental” anti-trust decision will allow citizens—not merely a federal government agency—to litigate the anti-competitive aspects of the psychology act.

Masters-degreed psychologists should be able to practice psychology independently.

Constitutionality of the New Statute and Role of Certification

The new Texas definition remains unconstitutional today. House Bill 3808 tacked on the new definition as an amendment to a financial aid bill for marriage and family counselors. The Commission had asked that a committee of “stakeholders” develop three draft statutes—one broad, one narrow, and one in-between draft.

In testimony before the Senate committee on the Senate version of the bill, the president of the Texas Psychological Association (TPA) reported on the Working Group’s results and conceded the group chose a “broad” definition.

It appears that this definition was adopted in HB 3808. I had made the suggestion that legal decision-making should be removed from the definition.

Nevertheless, the new definition will likely require a second constitutional test because its relatively minor changes—some verbs have been changed to nouns, remuneration has been added as a factor—do not change the fundamental violation of the constitutional right of free speech. Over-breadth is the problem.

The new statute attempts to “draft around” the Fifth Circuit’s decision by adding some incomprehensible exceptions that purport to mirror the examples that the Fifth Circuit identified as problematic. But the new statute does not cure the over-breadth. If anything it will increase rather than decrease the appearance that the State has been recalcitrant in complying with the decision.

The new statute should have had more attention from the legislature than farming out the draft to an influential interest group.

The risk of further constitutional litigation will be decreased somewhat if the new statute is never enforced. However the risk will not be entirely removed because eventually a plaintiff will want to offer services in some domain that the new, broad definition encompasses.

The TPA’s testimony that the Working Group chose the “broad” route, and the fact that the purported stakeholders included only service-providers will be used as evidence to counter the new statute’s constitutionality.

In addition, the many decades of scientific research showing that variations in amount or type of therapeutic training have no discernible relationship to actual client outcomes will be a major stumbling block to a prohibitive license. This research formed much of the trial in Serafine v. Branaman, although the court found constitutional violation without reference to it.

I have previously urged that the way out of this constitutional quagmire is a certification, which the state can fashion as it will, rather than a license, which is prohibitive of the exercise of constitutional rights.

The Anti-trust Risk and Role of Masters-degreed Psychologists

The practice of restricting masters-degreed psychologists raises a “Carolina Dental” anti- trust risk arising out of the Supreme Court’s decision in North Carolina State Board of Dental Examiners v. FTC.

The over-whelming majority of service providers in psychology have always been trained to the masters’ level—licensed professional counselors, clinical social workers, marriage and family therapists, and in some states addiction counselors.

There is no identifiable difference between what those with masters degrees and doctoral degrees actually do, in the most common forms of therapy, except to the extent they are artificially restricted. Certainly there is no research to back up restricting those with masters degrees.

It is simply not the case that a higher degree leads to better service or better therapeutic outcome.

There is extensive research on levels of training and types of training in psychology and whether more training and experience leads to better or more predictable outcomes. That research has not shown that more training leads to better outcomes.

For example, probably the largest survey of client satisfaction and effectiveness in the field of therapy is a 1995 study carried out by the esteemed psychological scientist Martin Seligman. It collected questionnaires from over 4,000 users of psychological services.

The main conclusion of interest was that “[w]hile all mental health professionals appeared to help their patients, psychologists, psychiatrists, and social workers did equally well….”

More recent studies show the same results, though with smaller samples.

Setting aside federal anti-trust violations, Texas has its own strong anti-trust laws—stronger than those of many other states.

For example, the Texas Constitution is one of the very few state constitutions to contain a provision in Article 1, Sec. 26 that states “[p]erpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed….”